Wednesday, July 29, 2009

The Jefferson County Board of Education can't hide from "unwanted or unpleasant public input" in evaluating Superintendent Sheldon Berman, Kentucky Attorney General Jack Conway ruled Tuesday.

The ruling said the board violated the state's open-meetings law when it made its annual evaluation of Berman in a closed session July 29, despite a 2008 attorney general's opinion that such evaluations must be made publicly unless they might lead to discipline or dismissal. Berman's evaluation was positive, though the board urged him to improve his interaction with the board, the community and parents.

The decision came in response to a complaint by The Courier-Journal, which disclosed the ruling in a story today. Board chair Debbie Wesslund told the Louisville newspaper that she disagreed with the opinion, and would consult with the board and lawyers in deciding whether to appeal. The 2008 decision, which involved a similar case in Spencer County, is under appeal in circuit court.

In a similar case, Conway issued a ruling Tuesday that the Kentucky Community & Technical College System violated the Open Records Act when it refused to give its evaluation of former president Dr. Paula Gastenwald to the Owensboro Messenger-Inquirer. Gastenwald was removed as president by the KCTCS board earlier this year. The attorney general said the public's interest in the case outweighed any privacy interst of Gastenwald. "The public is entitled to know why Dr. Gastenwald was removed," the opinion said.

Full texts of attorney general opinions in Open Meetings/Open Records cases can be found through Links of Interest at the bottom of the KOG Blog.

Documents showing county magistrates how money has been spent in their districts are public records, the attorney general's office said in an open-records decision last week. The decision pulls back the curtain on a common practice in county governments, divvying up funds for roads on the basis of political representation. Sometimes, actual needs of the districts take a back seat. It could also reveal a perhaps less common but arguably illegal practice, giving magistrates authority to spend money in their districts. They are supposed to be legislators on the Fiscal Court, with no executive power.

Richard Shivel of Russell County asked in writing to see "records related to monies spent by individual Magistrates in their respective districts, and any monies given or set aside" for individual districts or magistrates, including inspection of the folders that magistrates keep of such documents. The county attorney said the folders were personal and could be requested from the individual magistrates at a Fiscal Court meeting. When Shivel appealed to the attorney general, the county judge-executive said the folders are kept in his office, but contained only copies of other documents that could be obtained from the office. Citing a 1991 opinion, the decision said that was no excuse.

"Mr. Shivel should still have access to the folders in order to know which particular documents have been set aside as pertaining to each magistrate’s district," said the decision, written by Assistant Attorney General Jim Herrick and approved by Attorney General Jack Conway. It has the force of law but the county can appeal by filing suit in Russell Circuit Court.

Monday, July 27, 2009

A new attorney general's opinion contains some useful reminders about what the state Open Records Act does and what it doesn't do. The opinion, in the case of a Goshen man's demand for information from the North Oldham Fire Protection District, found partially in favor of the complainant, Peter Neidhardt, and partially in favor of the district, treading a careful route among state and federal laws and regulations and the definition of records, information and research.

Neidhardt had demanded minutes from unspecified meetings of the district board about volunteer firefighters' benefits and reimbursements. The decision said the district failed to provide "timely access," by not meeting the three-day deadline for a reply, but there was no statutory requirement for the district to provide information, create a record, perform research or compile a list.

The decision said the purpose of the Open Records Act "is not to provide information, but to provide access to public records." Therefore, "requests for information, as opposed to requests for specifically described public records, need not be honored." In the words of the office, what the public gets is what the public agency has and in the format in which the agency has it. "One desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled."

Further, the attorney general said, the district was not required to make a written reply to Neidhardt, and since he resided within the county, could require him to go to the district's office in working hours to look through the records himself.

For a complete text of the opinion, and several others issued recently, see Links of Interest at the bottom of the blog.

Tuesday, July 21, 2009

Kentuckians can feel confident their government is operating with a relatively high degree of transparency and openness, except for “serious problems” in the juvenile and family court system, which includes juvenile proceedings.

That's the news in the 2009 Kentucky Open Government Report, published by the Scripps Howard First Amendment Center and Institute for Rural Journalism and Community Issues at the University of Kentucky, which publish this blog.

The relatively good state of open-records law was illustrated last week by The Courier-Journal's publication of a story and online database about donations to the University of Louisville Foundation. The story was made possible by a state Supreme Court ruling that ended a long legal battle between the university and the newspaper.

On the other hand, family courts and the Cabinet for Health and Family Services combine to create the biggest black hole in Kentucky government, says Jon Fleischaker, a Louisville lawyer who wrote Kentucky’s open-government laws and remains the state’s foremost First Amendment attorney.

Thursday, July 16, 2009

Madison County officials who invoked the threat of terrorism and protection of a vendor’s proprietary information to avoid releasing records were wrong, and failed to prove their case on either issue, Kentucky Attorney General Jack Conway ruled this week.

Conway issued the decision, which has the force of law, in a case involving a request for public records on the construction of a 300-foot antenna tower on county land near a residential subdivision. The county fiscal court and emergency management office had released some of the records requested by Thomas Vergamini, but refused to release others, which they claimed included information marked “proprietary and confidential” by the unidentified vendor. The two offices also stated they would “not provide any records that have a reasonable likelihood of threatening public safety by exposing vulnerability in this emergency communication system: Whether it is in preventing, protecting against, mitigating, or responding to a terrorist incident or disaster.”

Conway ruled that the officials could not claim exemption from the Open Records Act with a simple statement, but had to show a “real threat” of harm to the vendor, and to the public. They failed to do so, Conway said in finding for Vergamnini. The officials now have to release the records or appeal to circuit court.

The opinion was one of several released recently by the attorney general’s office. Others included:

OAG 09-005: Former employees of the Justice and Public Safety Cabinet, including the Office of the State Medical Examiner and of the Kentucky State Police Laboratory, are not entitled under Kentucky law to hourly compensation when subpoenaed to testify in a case arising from their duties while employed by the Commonwealth.

09-ORD-098: Franklin County School District failed to establish that an open-records request was inadequate and placed an unreasonable burden on the district. As described, records identified in district's admittedly limited search were excluded from public inspection by KRS 61.878(1)(i), (j), (k), and (l), but it is incumbent on the district to conduct a broader search of its paper and electronic files to locate any remaining records.

09-ORD-099: Decision adopting 07-ORD-188 and 07-ORD-190 regarding the statutory obligations of a public agency upon receipt of a request for nonexistent records or those which the agency does not possess; a public agency is not required to produce nonexistent records, nor must a public agency “prove a negative” in order to refute a claim that certain records exist. In the absence of a prima facie showing that additional records exist in the possession of the Johnson County School District aside from those already provided, its disposition of the request is affirmed in accordance with Bowling v. Lexington-Fayette Urban County Government, Ky. 172 S.W.3d 333, 340-41 (2005), and prior decisions of this office.

09-ORD-101: Decision adopting 07-ORD-188 and holding that in the absence of a prima facie showing by requester that responsive records exist that have not been furnished, Transportation Cabinet properly disposed of request by providing requester with all such records in its custody and notifying him that no additional records exist. Attorney General's office is not the proper forum for dispute resolution relating to discrepancies in records produced for inspection.

For the full text of these opinions, see Links of Interest at the bottom of the KOG Blog.

Thursday, July 2, 2009

The Kentucky League of Cities has returned to its former policy of fulfilling open-records requests from the Lexington Herald-Leader, it announced today. It reserved the right to withhold records that might hurt the insurance business that has turned it from a relatively modest lobbying group to a financial institution.

“While we are withdrawing our opposition to certain requests, we will continue to protect our proprietary interests as we compete in the marketplace every day,” Mayfield Mayor Arthur Byrn, chair of the Kentucky League of Cities Insurance Services board, said in a press release from the league. Last week, the league said it would stop releasing records because it didn't consider itself to be a public agency. Under the state open-records law, entities that get 25 percent or more of the revenue they spend in Kentucky are public agencies.

The league indicated that last week's decision was a public-relations blunder. “Our intent to protect our insurance service programs has been greatly misunderstood to the detriment of the reputation of our organization,” KLC General Counsel Temple Juett said in the release. “Our intent has and always will be to protect the proprietary nature of our business – in particular our insurance services – which were founded in the late '80s when cities could not obtain insurance anywhere and for any price.”

After the Herald-Leader published stories last month about the salaries and expenses of top league executives, it asked the league for records of payments to law firms. That prompted the policy change that was reversed today. For the league's release, click here. For more information, see the item below.